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Friday, June 5, 2015

The Elements of Research -- Part Eleven: A Healthy Dose of Skepticism

Genealogical research is both methodology and theory. This has been a basic theme of this long series of articles. But underlying the relationship between the two is another, much more difficult concept: historical records are innately unreliable. Researchers undoubtedly find this one of the difficult concepts to contend with.

In a trend to employ even more legal jargon, quite recently genealogists began classifying documents into broad categories based on further unreliable assumptions and involving legal jargon. This categorization used some of the concepts and terms from the legal Rules of Evidence. The terminology adopted included such indefinite terms such as primary, secondary, direct, indirect etc. The idea here was to create a method of evaluating the accuracy of any given historical document. Descriptions of the categories were (and are) supposed to help the genealogist in that evaluation.

The Rules of Evidence are certain court procedural rules in force in the United States that guide attorneys (lawyers) and judges in their determination of the types of testimony and exhibits that will be allowed in court. Each court, from the Federal Courts to local courts have their own particular rules of evidence. The Rules of Evidence may vary from court to court. Once the genealogical community started down the road of adopting legal jargon by talking about evidence and proof in a legal way, it was inevitable that they would also use the legal terminology for the classification of that "evidence." The main problem with this whole adoption process is that the attorneys and judges themselves have to spend a considerable time learning how to apply the rules of evidence and they are often wrong. Genealogists use of the terms is completely ad hoc and lacks codification.

I once had a two week jury trial in Gila County, Arizona. The case took months to prepare and the trial, which was held in Payson, Arizona, a town some distance away from my home, required me to drive back and forth each day. The drive took about an hour and half one way. In total, including the judge and his staff, the attorneys and their staff, the jurors and all the clients, there were probably thirty people involved in the trial for that whole two week period. To add a measure of difficulty to the trial, because of the physical size of the county and to accommodate the jurors, the trial was also held in Globe, Arizona, in the two different towns on alternate days. So we had to transport everything back and forth every day, one day in Payson, the next day in Globe. The two towns were about an hour and half apart but in the same county.

From a very simplified standpoint, at the very beginning or even before a jury trial (or even one held with only a judge), during trial preparation, the opposing parties and their attorneys present their proposed "evidence" to the court. The judge then listens to what each side proposes to prove through that evidence. Each document and all of the testimony to be heard is reviewed by the court before trial and the attorneys "make their objections on the record." This is done both in writing and orally before the judge. The judge in the trial then makes preliminary rulings (decisions) based on his or her evaluation of the admissibility of the evidence according to the Rules of Evidence and further based on the thousands of law cases that have been previously decided about those Rules.

This is a very intense and extraordinarily complicated process. In this case, before the trial, I proposed to present evidence contained in a certain document during the trial. For several reasons, the opposing attorney objected to my using that particular document. There were hundreds of documents that would be presented. During the discussion with the judge before the trial, the judge ruled that my document could be used in the trial, i.e. admitted into evidence. That is, the document could be presented to the jury and the jury could use the document to determine the outcome of the claims in the lawsuit. One document out of hundreds.

During the trial, because of the judge's ruling, I used that one document in the presentation of my clients' evidence. Of course, the opposing attorney raised his objection which was overruled by the judge and the document was admitted into evidence and considered by the jury in their deliberation.

The case ended with a jury verdict (decision) in my clients' favor (we won). The opposing attorney then appealed the entire decision to the Arizona Court of Appeals based on the judge's determination to allow the jury to see that one document. The Arizona Court of Appeals and subsequently, the Arizona Supreme Court held that the judge's decision was in error. The entire decision was reversed based on the admittance of that one document. The case was remanded (sent back) and we had to try the entire case over again, which, by the way my clients lost the second time. We spent another two weeks trying the case a second time.

I tell this story for a number of very specific reasons. My main point is that genealogy has very, very little in common with court cases, legal rules and procedures. Our continued insistence on using quasi-legal jargon in conjunction with our historical research is misleading at best and extremely detrimental to an understanding of the research process at worst. The two terms, "evidence" and "proof" are slippery and often used in a general way that implies that a level of evaluation and consideration has been employed that does not really exist. Likewise, when genealogists employ terminology that implies some sort of document reliability, they are drifting off into the sea of uncertainty.

The terms most frequently involved include the following:

Primary Source -- oral or written at or about the time an event occurredSecondary Source -- everything else

Direct evidence -- information that seems to solve the research issueIndirect evidence -- information that cannot stand on its own, but needs to considered in conjunction with other evidenceNegative evidence -- Information that seems to contradict an assertion or the absence of any confirming information

There are other terms used that owe their origin to a more historical investigative background. For a more complete discussion, see Chapter 1 of the following:

The use of these terms gives a patina of respectability that is, in actuality, entirely missing. For example, I proved my case in Gila County. So what? In our legal system, a case isn't over until it is over, that is, until all the possible appeals have been exhausted. There is no real analogy between our legal system and the process of doing genealogical research. Legal cases finally end with a decision by some judge in some court or the parties simply stop litigating.

Genealogical research is entirely open ended. There is no definitive end. Any new document or record discovered could very well cause you to completely revise your entire theory about your family. I have seen this happen many times when people learned that there most cherished family traditions were found to be entirely without any basis in the historical documents.

Why did I include a rather long discourse on a specific trial experience? The lesson is this. Legal jargon reflects a complicated system of jurisprudence, i.e. court cases, legislation, regulatory agency rulings and many other components. Genealogical research is entirely lacking the decision making processes of our court system in the United States (or elsewhere for that matter). Genealogy is not adversarial, there are no genealogical attorneys representing their genealogical clients. In law, cases are decided or abandoned. There is a finality to each individual case.

Since genealogical research is entirely open ended and we have no assurance that there is ever a final word or decision. It is imperative that we recognize these differences and craft our own jargon that reflects the reality of genealogical research and does not borrow from other inappropriate disciplines.

Well, I don't see an end to this series yet. I may lose all my readers in the process, but there is something to be said about more detailed and extensive writing. Stay tuned.

3 comments:

Hi James. Excellant post. I will have to read the other posts of the series. I have not yet but wish to ask at the risk of it being answered somewhere else, what language do you propose we use instead of primary and secondary to differentiate between a source obtained close to the event and a source created a long time later colored by family lore? I think it is clear that a birth certificate would trump a bio in a county history or a marriage license would trump a census record. Is it semantics that you are in disagreement with or the concept that some documents carry more weight than others?

You won't be losing this reader, James. I'm really enjoying this series. Would you consider creating an "Elements of Research" label to add to each post so the whole series could be brought up from any part of it?

I agree with you, James, pretty much across the board. You might consider, however, that the statement "Genealogy is not adversarial" does not take into account the food fights that go on at geni.com and its ilk.